Forbes v. . Long

ClaeK, C. J. The land in question admittedly belonged to one Buff-kins, who made a deed in March, 1815, “conveying it to John, Virginia, Cordelia, James, Ambrose, and Edgar L. Forbes, children and heirs at law of Isaac Forbes.” Before his death, said Isaac had gone into possession of these lands under a contract to convey. The plaintiffs are two of the grandchildren of said Isaac Forbes, being the children and heirs of John Forbes, son of Isaac, named in the deed. The defendants have admittedly acquired the interest of the other heirs at law of Isaac Forbes, named in the deed. After the death of Isaac Forbes, his widow, Mary (afterwards Mrs. Boyce) remained on said lands with a part of the children, who gradually moved away, she remaining there with one of the sons, Edgar, an imbecile, until he was carried to the county home. She also paid some taxes on the lands and collected rents. The plaintiffs' ancestor was not on the land, and lived in another part of the county. These plaintiffs left their step-grandmother unmolested as long as she lived, but after her death, when they undertook to assert their claim for their undivided interest, the defendants, who had then acquired all the other interest, denied the plaintiffs' right to a share in the land, alleging that Mrs. Boyce, the grandmother, by adverse possession, had acquired title. Upon the face of the deed from Buffkins, and the recitals therein, Isaac Forbes was a mortgagor in possession prior to his death for the retention of title by Buffkins, as set out in the deed made the bargainee a mortgagee, and Isaac Forbes was the possessor, therefore, of an equity of redemption in the premises. The possession by his widow after his death was rightful, and not adverse to his heirs. She was entitled to dower in the lands, and therefore the period of her possession cannot be counted against the plaintiffs or their father, heirs at law of her hus *40 band. Resides, nearly all tbe time some of tbe beirs at law were living with ber on tbe land. There is no scintilla of evidence of a denial of tbeir right at any time by their step-grandmother. Tbe possession of tbe widow is not adverse to tbe heir. Everett v. Newton, 118 N. C., 919; Malloy v. Bruden, 86 N. C., 251; Melvin v. Waddell, 75 N. C., 361. Her estate was an elongation of ber husband’s estate, and, as widow, she held in priority with, not adversely to, tbe beirs and those claiming under them. In re Gorham, 177 N. C., 277; Love v. McClure, 99 N. C., 295. Tbe court properly refused tbe defendants’ motion for á nonsuit. Upon tbe face of tbe record tbe plaintiffs and defendants were tenants in common, and tbe character of Mrs. Boyce’s possession would have been in any view for tbe jury to determine. Tbe defendants, 'several months before tbe case was called for trial, bad taken certain depositions out of tbe State, which' were sealed and sent to tbe clerk of tbe court, but tbe defendants withdrew them from tbe files without any order of tbe court or consent of tbe plaintiffs. When tbe case was called, tbe plaintiffs moved tbe court to compel .the depositions to be returned. Tbe court so ordered, and tbe defendants excepted. Tbe defendants bad no right to remove them from tbe files without leave, and tbe order of tbe court for tbeir return was proper. During tbe argument tbe attorneys for tbe plaintiff referred to tbe depositions, which were still unopened, and argued to tbe jury that they were unsatisfactory to tbe defendants; otherwise, they would have given tbe jury tbe benefit of tbeir contents. We do not see that this was an unreasonable inference or an unfair argument, and, indeed, it does not appear in tbe record that there was any exception on this ground. No error.